Sovereign immunity on trial

Tribal governments may no longer be exempt from being
sued by tribal members. Since the early 1800s, the U.S. government
has acknowledged that Indian nations have full legal rights to
manage their own affairs. This doctrine of tribal “sovereign
immunity” has prevented legal attacks on tribal governments
and shielded them from lawsuits brought by states, groups or
individuals. But the recent 9th Circuit Court decision that
sovereign immunity doesn't protect the Blackfeet Nation of Montana
has "far-reaching and grave implications for all of Indian
Country," said Steve Doherty, the tribe's lead attorney.

The court ruled 2-1 that the tribe waived its sovereign immunity
through the language in its housing regulations, making the
Blackfeet Housing Authority and not the Department of Housing and
Urban Development liable for faulty, mold-infested tribal homes
built under programs regulated by HUD. (The problem is not just
confined to the Blackfeet: A 2003 HUD study found toxic mold in 15
percent of tribal homes nationwide.) The Blackfeet, like most
tribes that receive housing funds from HUD, adopted a boilerplate
provision provided by HUD, which the court deemed a waiver of
sovereign immunity.

The court’s interpretation may
have serious repercussions for tribes. “This is one of the
arguments we made, that the same or similar kind of language is
commonly seen in agreements with tribal entities,” said
Doherty. “If the decision goes forward, it would expand the
grounds for finding an implied waiver of immunity.”

Without sovereign immunity to protect them, many legal experts
worry that tribal governments with similar provisions will be
besieged with personal injury and class action lawsuits. Other
tribes, including the Navajo and the Confederated Salish and
Kootenai, are concerned because they have housing ordinances
similar to the one that opened up the Blackfeet Housing Authority
to lawsuits, and have filed amicus briefs in support of the
Blackfeet agency.

Indian law expert Richard Guest says he
is concerned with the exemption of HUD from the case on the basis
of the United States’ own sovereign immunity. "By saying,
‘You, the federal government, are not liable, but you, the
tribe, are,’ (it) exposes the tribes to the kind of liability
that they're not set up to absorb the way the United States is."

Judge Harry Pregerson, who dissented with the
court’s opinion, cited numerous statutes that he said created
a trust duty to the tribe and its members. “The federal
government undertook, as part of its treaty and general trust
relationship, to assist the Blackfeet Tribe to acquire decent,
safe, and sanitary housing. The tribe had little choice but to
accept the government housing program.”

The
Blackfeet Nation is likely to request a rehearing in front of a
larger 9th Circuit Court panel, says Doherty, rather than appeal to
the Supreme Court.

The author writes from
Portland, Oregon, and is a member of the Winnebago Tribe of
Nebraska.

More from Tribes

Aha! Now these
groups("tribes") are going to realize that
"sovereignty" actually comes with consequences
and responsibilities. It's not just a one-way street where
money flows from taxpayers to tribes. It may have been fun
"playing government" when the money was flowing
and casinos, exempt from zoning and taxes were humming. But now the
courts are pointing out that if you want to "play
government' you'd better be ready to
accept the responsibilities.

Perhaps this will
mark the end of this foolish game and people can go back to
regarding "Indian" as an ethnicity and not a
government designation-just like the rest of us. And Indians will
finally get out from under the thumb of tribalism and will reap the
full rewards of U.S. citizenship.

Anonymous

Apr 29, 2008 05:47 PM

And what does "reap the full rewards of U.S.
citizenship" mean, does that entail typing out
your opinion and being too chicken
"poop" to back up your opinion that you have to
sign it Anonymous??

Anonymous

May 12, 2008 12:14 PM

The Ninth Circuit's
decision is flat wrong in its legal analysis. The Supreme
Court has repeatedly stated over and over that the only way ANY
sovereign--state, federal, or tribe--can waive sovereign immunity
is through an EXPLICIT waiver. There's no such
thing as implicitly waiving sovereign immunity.
That's one of the bedrock legal principles upon which our
government operates. It is particularly insidious to
waive the tribe's immunity in the same breath in which the
federal government retains immunity. Given that the
contractual language in question derives from HUD boilerplate it is
impossible to construe this as an arms-length negotiation that
resulted in the implicit waiver provision. So, not only
is the waiver implicit, it was not even drafted by the party
against whom it is being construed. From a legal analytic
standpoint, the clear error of the decision is glaring.
Fortunately, the 9th Circuit en banc is unlikely to continue this
madness where 2 judges have decided to directly overrule the
Supreme Court and the basic principles of sovereignty that have
governed the western world since the Treaty of
Westphalia.